BC Will Appeal Court’s Ruling, Protect Tapes

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BC Will Appeal Court’s Ruling, Protect TapesAppeal Will Not Be Heard Until JuneThe Heights
By Taylour Kumpf, Editor-in-Chief
Wednesday, February 22, 2012

Boston College filed an appeal on Monday of the federal court ruling issued last month that ordered the University to turn over transcripts and recordings of interviews with seven individuals who took part in the Belfast Project, an oral history project on the sectarian violence in Northern Ireland known as “The Troubles.”

“Boston College today filed an appeal of the District Court’s most recent decision (issued Jan. 20, 2012) requiring the University to turn over all or parts of the interviews of seven individuals who took part in The Belfast Project, an oral history project on the Troubles in Northern Ireland,” University Spokesman Jack Dunn said on Monday. “The University is seeking further review of the court’s order to ensure that the value of the interviews to the underlying criminal investigation by the Police Service of Northern Ireland outweighs the interests in protecting the confidentiality of academic research materials.”

The University has reserved the right to appeal throughout the case and did not immediately appeal the court’s first decision in December. “Boston College did not appeal the District Court’s first decision in this case (issued Dec. 16, 2011) because the court both accepted Boston College’s argument that government subpoenas for confidential academic materials requires heightened scrutiny, and agreed to review the materials in camera to help protect the significant interests at stake,” Dunn said. “In its appeal, Boston College will argue that the District Court incorrectly applied its own review standard when it demanded the production of the interviews of these seven individuals.”

After the tapes were originally subpoenaed, BC asked U.S. District Court Judge William Young to review the tapes to determine their relevance to the criminal investigation regarding the abduction and murder of Jean McConville. “Upon his review, he determined that the Price materials were relevant to the investigation and ordered that they be turned over to British law enforcement,” Dunn said.

Young, who reviewed the transcripts, has said that he reviewed 176 transcripts compiled from interviews with 24 individuals, but only a handful even mention McConville, whose death is being investigated by British authorities in Northern Ireland. The body of McConville, a mother of 10, was recovered in 2003.

British authorities have sought the information as they investigate the 1972 abduction and killing of McConville in Belfast. The IRA has admitted to killing McConville because she was suspected of being an informant.

“From the beginning, Boston College has asked Judge Young to weigh our interest in protecting academic research with the government’s interest in meeting its Mutual Legal Assistance Treaty obligation with the United Kingdom,” Dunn said. “Judge Young agreed to balance these competing interests. The University is now seeking further review of his order to ensure that the value of the interviews to the underlying criminal investigation outweighs our interest in protecting the confidentiality of academic research.”

“In the subsequent review of the remaining IRA tapes, Judge Young ordered that seven of the tapes were relevant to the criminal investigation and ordered that they be turned over to British law enforcement,” Dunn said. “These interviews appear to have limited probative value to the investigation, so we have sought a review of the judge’s decision to determine if he incorrectly applied his own review standard when he ordered the production of these interviews.”
The University’s appeal will likely be heard in June, Dunn stated.

The researchers behind the project, Ed Moloney, Anthony McIntyre, and Wilson McArthur, are separately asking the U.S. Court of Appeals for the First Circuit to completely block the request by British law enforcement. A hearing is set for March.

In a statement, McIntyre and Moloney said they regretted that the college has only now decided that it will fight the forced release of the transcripts, especially since BC has already agreed to hand over the project’s interview with Price.

“We would like to welcome Boston College’s decision to lodge an appeal against the subpoenas served against seven of our interviewees but regret that the college finally took this decision too late to include the interviews of Dolours Price,” the men said in a statement. “We will continue our fight to protect all our interviewees, Republican and Loyalist, including Dolours Price.”

Dunn gave reasons for the University’s decision not to appeal for Price’s tapes.

“We did not appeal [Young’s] decision because there was no legal basis upon which to appeal it,” Dunn said. “Dolours Price had given an interview in Northern Ireland in which she referenced her involvement in the Belfast Project and made statements that incriminated both herself and Gerry Adams. Her statements made her interests in upholding the secrecy of the interviews less than compelling to the court.”

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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